Sunday, August 7, 2011

Fake it Till You Make It: Law School Teaching, Part I

Here is a passage from William Ian Miller’s book Faking It:

It happened again today: I was bluffing my way through some material in my Property class, about which I knew no more than the teaching manual told me, it being the extent of my researches on the topic. On such occasions I present the material in the pompous style in which professional banalities are often uttered, meaning thereby to prevent student questions by elevating myself to the regions of the unquestionable. God forbid one of them should start thinking deeply about the stuff and expose the limits of my knowledge.

Miller, who has been a professor at an elite law school for nearly 20 years, is one of a handful of people in this business we’ve chosen who is both willing and able to write candidly about it. The experience he describes – teaching material that one knows literally nothing about beyond what the casebook and the teaching manual have told the “professor” -- is one that is repeated in several thousand law school classrooms on every weekday between September and April of every year. Most law professors gain essentially all of their knowledge of most of the subjects they teach in the manner Miller describes.

Now I’m sure there are certain paragons of pedagogic virtue who conscientiously keep up with the latest legislative and judicial developments in the classes they teach – who spend countless hours pouring over new statutes and opinions and law review articles, to make sure that their knowledge of adverse possession or promissory estoppel or the felony murder rule is well and truly up to date. I don’t know too many law professors like that. The typical professor teaches the same classes year after year. Not only that -- he uses the same materials year after year. I’m not going to bother to count – this is law school after all, and we don’t do empirical research -- but I bet that more than half the cases I teach in my required first-year course were cases I first read as a 1L 25 years ago. After all I use the same casebook my professor used. I even repeat some of his better jokes (thanks Bill). And, with very few exceptions, I know nothing about the formal legal material that I haven’t gleaned from reading the casebook and the teaching manual. This is how much preparation I’m doing this summer for the classes I’ll teach this coming academic year: None. And that, I guarantee you, is the median amount of time law professors have spent over the past three months preparing for the classes they’re about to start teaching again.

Smarter and more cynical law students soon figure out that their professors aren’t exactly killing themselves preparing for the classes they teach. It takes just a few probing questions from the cleverer and less cowed to reveal that the typical law professor’s knowledge of the subject matter he’s teaching is a mile wide and an inch deep. Sure, he’s good enough (maybe) at faking that he knows what he’s talking about in regard to X – even when X is actually a giant sprawling mass of often contradictory and incoherent material covering a vast range of subjects that touch on dozens of areas of expert knowledge that have kept armies of social scientists and other real academics busy for their entire careers .

Consider the sheer absurdity, for example, of a professor “knowing” the “law of Property.” The only reason such a preposterous hypothetical is even momentarily plausible is because law professors are good at using their social authority to reduce “the law of Property” to something as intellectually impoverished and practically useless as the various Restatements of Property etc. (Supposedly, when the ALI was getting the original Restatement project geared up, the Ivy League law professors who had come up with the idea invited Brandeis and Holmes to their first meeting. Holmes went, and when he got back Brandeis asked him what these law professors thought they were doing. “They mean to restate the law” Holmes told him. Brandeis replied, “Why I restate the law every day.”)

Since it is impossible for one person to achieve expert knowledge about more than a handful of the subjects touched on in the typical law school class, and since most law professors have, as Miller implies, no more than a superficial level of knowledge regarding the real subject matter of their classes, what professors do instead is teach legal doctrine. Teaching legal doctrine requires knowing nothing about anything other than the legal doctrine one happens to be teaching at moment. And legal doctrine isn’t hard to learn. Oh it’s boring and tedious and soul-crushing and has zero intellectual value, but it’s not very difficult to master. After all legal doctrine is generated by judges, and judges are merely exceptionally successful former law students. In other words, they don’t know what they’re talking about either.

The end result is that law professors are perfectly capable of teaching classes on subjects in which they have neither genuine academic expertise nor any actual legal experience. There’s no need to have ever drafted a contract before teaching Contracts, if teaching Contracts just means teaching contract law doctrine -- and indeed many Contracts professors never have. This might possibly be acceptable if the professor was someone who had thought deeply about the difficult intellectual, moral, and political issues at the heart of any social practice that deals with enforcing private agreements through the threat of state violence, but nine times out of ten he hasn't done that either. The professor knows what the casebook and the teaching manual have told him, and nine times out of ten that’s plenty good enough for the purpose of faking out authority-worshipping law students.

If you are about to start law school, most of your classes will be of this type. Occasionally you’ll have a class with someone who is either a genuine academic or a genuine lawyer, but most of the time you won’t. Law school faculties are full of “academic lawyers” who are neither academics nor lawyers. This guarantees that most of your classes will be a complete waste of time.

When Elena Kagan became Solicitor General – that is, the government’s top appellate lawyer, who represents the government in oral arguments before the Supreme Court – it gave her an opportunity to do something she had never done before in her 20-year legal career: appear in court. This amazing little fact perfectly encapsulates one aspect of the absurdity of contemporary legal academia. Kagan, who was a law professor at Chicago and Harvard before becoming Harvard’s dean, had no litigation experience of any kind before she became the federal government’s top litigator. Her first courtroom experience as an attorney was appearing before the United States Supreme Court. And guess, dear reader, just guess, what Professor Kagan taught at the Harvard Law School? Civil Procedure! And I’m sure she was quite good at it – or at least she convinced her students she was. Someone should inscribe the phrase Fake It Till You Make It (in classical Latin naturally) on the façade of Harvard’s fancy new law building – and on that of every law school in America.

Mr. Brown: I suggest the following:1. Go to trials at your local district court. Misdemeanor criminal trials, felony criminal trials, civil trials where someone is suing someone else and it finally got to court instead of settling. Observe the entire process, from jury selection to final arguments.2. As soon as possible, get a clerking job at a small local law firm, where you get to do everything possible without running afoul of the UPL statutes... Talking with the attorneys you work for will be absolutely invaluable in making sense out of what you're learning in school, and you'll learn more by clerking than you ever will in law school.